August

Lawyers Journal

SCOTUS strikes down DOMA; Impact on Criminal Law

By Peter Elikann

August 2013

On June 26, 2013, the United States
Supreme Court invalidated the Defense of Marriage Act in United
States v. Windsor. The decision struck down a key section of DOMA,
which defined marriage as between a man and a woman for the purpose
of federal law.
Practically speaking, the United States Supreme Court's ruling in
United States v. Windsor that the federal Defense of
Marriage Act is unconstitutional will have little discernible
effect on the practice and enforcement of criminal law in
Massachusetts.

This, despite the fact that Justice Anthony M. Kennedy, writing
for the 5-4 majority, specifically included this field of law when
he stated that DOMA controlled "laws pertaining to Social Security,
housing, taxes, criminal sanctions, copyright and veterans'
benefits."

First, the decision upheld the history and tradition of marriage
being within the authority of the states. It reasoned that to have
the federal government view a couple as unmarried while, at the
same time, a state may or may not recognize that same couple as
married might create "contradictory marriage regimes in the same
state" and violate basic due process and equal protection
principles. Since Massachusetts does, in fact, already recognize
same-sex marriages, Windsor has no impact here on victims
or citizens accused of crimes within its borders.

Nor will it affect same-sex couples married in Massachusetts when
they travel, move or return to other states. Since Windsor
left in place the law that says no state is required to recognize
same-sex marriages performed in another state, there will be no
change there.

Most of the criminal laws pertaining to married couples concern
rights relating to domestic assaults, abuse and restraining orders.
This is why even if, hypothetically, Massachusetts did not
recognize same-sex marriages, it would still have little effect
here. That is because Massachusetts' domestic abuse law has already
long been enlightened enough to broaden its jurisdiction outside a
legal marriage.

For example, in a relatively wide net, the Massachusetts 209A
restraining orders against those who attempt to cause physical harm
or place another in fear of imminent serious physical harm
encompass those who: (1) are currently, or even formerly, married;
(2) are or were residing in the same household; (3) are or were
related by blood or marriage; (4) have a child in common regardless
of whether they were ever married or even living together; or (5)
either are, or have been in the past, in a dating relationship. In
other words, there has not been a requirement of legal marriage for
an offender to be criminally charged with a 209A restraining
order.

The exception where an actual legal marriage is a requirement in
Massachusetts is the assertion of the marital privilege. The
spousal privilege law in Massachusetts states that a spouse cannot
be forced by the prosecution to give testimony in a trial or other
criminal hearing brought against the other spouse with the
exception of prosecution for non-payment of support, child incest,
child abuse or neglect of parental responsibilities.

Although Windsor requires that, from now on, same-sex
married couples be recognized as spouses for the purposes of all
federal laws, there are very few federal criminal laws concerning
married couples. For example, the federal penal code makes it a
crime to assault, kidnap or murder a member of the immediate family
of a United States official, judge or law enforcement officer with
the intent to influence or retaliate against that official. The
Windsor decision makes this federal offense applicable to same-sex
spouses for the first time.

The bottom line is that the landmark Windsor decision
will have almost no practical effect on criminal offenses in the
commonwealth.